Here's The Vine Video Prince Abused The DMCA To Take Down

from the hello-fair-use dept

We just posted about Prince’s NPG Records issuing DMCA takedowns on a set of Vine videos. While noting that Prince regularly seeks to shut down internet support of his work far beyond what the law allows, we also pointed out that, given the 6 second limit on Vine videos, it seemed almost certain that the videos in question would be protected as fair use and/or de minimis use. After posting that story, we heard from Zack Teibloom who, it turns out, is the person who shot and posted the Vine videos in the first place. They were taken at Prince’s SXSW concert. He noted that he treated the takedowns as “cease and desist” letters and chose to take them all down. Before he did so, we were able to snag one of the videos, which we’ve now posted to YouTube solely for the discussion over whether or not the original takedown was an abuse of the DMCA.

We believe, strongly, that NPG’s takedown notice is faulty, and it’s quite possible that it violated 512(f) of the DMCA in that it appears NPG knowingly misrepresented that the works were infringing. In the DMCA notice, NPG claims:

These are unauthorized recordings and are unauthorized synchronizations As such, I have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law. I hereby confirm that I believe the tracks identified in this email infringe my copyright.

However, it is incorrect that the use was not permitted by law. Under both fair use and de minimis use, such a use is clearly permitted by law. Furthermore, as a court found in the Lenz v. Universal Music Group case, the filer of a DMCA takedown needs to take fair use into account before issuing the takedown. Separately, as a bootleg video, this might not even be subject to the DMCA at all.

As per Vine’s own limitation, the clip is a mere six seconds long, showing five disjointed clips of a song. If we were to do a four factors test for Teibloom’s original use, it seems clear that it is fair use.

The purpose and character of the use:

The showing of brief six second, disjointed clips was clearly just to highlight that Teibloom had attended the SXSW show, and was linked from his review just to highlight the sense of what the show was like. It’s clearly not a full use of the song or anything attempting to be a replacement for the song or the concert itself. It was a brief “view” of one attendee’s perspective, which is clearly transformative from the original work. As such, it clearly “added value” to the original, since it was showing something different and unique from the original, while providing some perspective on the experience of attending such a show.

The nature of the copyrighted work

This was a recording of a brief bit of a live event, not of the sound recording or anything like that. Again, the point was to capture the live atmosphere and experience. This prong of the fair use test is supposed to be to protect the dissemination of information, and that seems clear from the use.

Also, even the brief bit of music that you hear is a pretty generic soul / funk music riff, rather than something highly unique and identifiable with Prince himself. I’m not even sure that the song being played is a Prince song. It sounds so generic and short it’s difficult to identify. As a test, I tried to use Shazam on it, and despite claiming to be able to identify a song with as little as one second of music, it said it could not find a match. If you’d asked me I would have thought it was a just a generic James Brown-style riff rather than anything specific to Prince. Given that, while the performance is potentially covered by a copyright, it’s not clear that the song is covered by Prince’s copyright.

Hell, just the fact that it’s unclear what the song is highlights why this is almost certainly fair use or de mininmis use. One of the characteristics of de mininimis use is if you can distinguish the work. When even the expert automated ears at Shazam can’t do that…

The Amount and Substantiality of the Portion Taken

Six disjointed seconds. ‘Nuff said.

The Effect of the Use Upon the Potential Market

There is clearly no negative use whatsoever. It is not as if someone will not buy or license a Prince song because this clip was “good enough” as a substitute. There is no rational way to support such a claim.

That said, it is possible that Prince’s takedown actions might cause people to no longer want to support his works, but that’s his own actions, not this particular video.

That’s for Teibloom. As for us reposting the video and discussing it here, our use is even more transformative, as it is now about the discussion on whether or not the video itself is fair use. Without showing the video it is difficult to have a reasonable or competent discussion on whether or not it was fair use.

Either way, we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.

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Companies: npg records

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Comments on “Here's The Vine Video Prince Abused The DMCA To Take Down”

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33 Comments
Anonymous Coward says:

Re: Counter Sue

“Issuing a DMCA notice for material you do not hold the copyright for is infringement and should be subject to statutory damages.”

I agree, I think it actually IS infringement.

According to copyright law, the clip is “fair use”. Therefore, the person (and everyone else) has a right to publish the clip. But Prince had the video taken down by using a false DMCA claim. The person who shot and published the video is therefore having their rights infringed. It shouldn’t matter whether the right is “exclusive” or not.

Anonymous Coward says:

I was dreaming when I wrote this
I’ll sue you with DMCA
Cuz the public are infringers, and infringers have got to pay
War is all around us, my lawyers say prepare to fight
So if I gotta file, gotta file bogus claims tonight

Cuz they say
Hey all you infringers, party over,
You’re out of time
So tonight I’m gonna party with a big takedown on Vine

Anonymous Coward says:

telling us here will make no difference, just as telling the authorities will make no difference either. Congress purposefully left out any way for those accused falsely under the DMCA. that was done so that the campaign contributions would keep flowing in from both the music and the movie industries. just think how bad it would be if Senators actually had to do something, for free, that would be better for the people they represent, rather than for the industries that simply buy their way into laws. how could either survive on honesty? it would be their worst nightmares!!

Anonymous Coward says:

Re: Re:

Because the simple stuff to find and point out pave the way for dealing with the far more serious abuses of the law.

Unless you like seeing more and more abuses of the public’s rights and access to media? Sure, stuff like this seems small, no doubt about it. However, the more and more the public does not contest this crap, the more and more those that can abuse the law will. Up and until the public’s right to contest any thing is in doubt.

It’s about protecting the rights of the public to what is lawfully allowed.

S. T. Stone says:

Re: Re: Re:

Okay, time out, back up for a moment and re-examine what you?ve just said here.

You seem to think that Techdirt?s staff of writers/editors/bloggers/talking heads/whatever you want to call ?em automatically hate copyright law and want to see it destroyed and never put back into use again.

As someone who?s read this site for years, you just dropped a huge pile of crap into these comments.

Techdirt?s helped me shape my own views on copyright over the years; much like the site?s writers/editors/you get the joke, I don?t advocate for the complete destruction of copyright law. (Abolishing copyright would create far more new problems, anyway.) No, see, Techdirt advocates for a copyright system that favors the general public (copyright?s original intent) instead of the handful of corporations and multi-millionaires who can afford to enforce copyright in a court of law without going broke.

In my lifetime (32 years), copyright has become a perverse joke?no, wait, it?s really become a study in the inherent insanity of letting copyright go to its fullest lengths with no regard for the general populace.

We have a system in place to ensure that no one currently living will ever see anything created or published within their lifetimes go into the public domain. We have a system in place that allows someone with millions of dollars to get a six-second video with his music playing in the background taken down from a video-sharing website ? and also makes sure that the person who uploaded it can?t do anything about the takedown, even if they believe the video falls under fair use, because said uploader would incur enough legal costs to put them into the streets. We have a system that forces advocates for specific exemptions to copyright law (specificially the DMCA) to go back to Washington DC every three years to argue why those exemptions should stay in place.

Oh, and lest I forget, this same system also falls under the purview of people that the major media conglomerates have all but bought and paid for to ensure that the system favors said conglomerates (and their individual multi-millionaire brethren) more than the general public.

Copyright doesn?t serve the people any more; it harms them. It prevents both true innovation in the marketplace and freedom of creativity. It silences those without the money to incur a costly legal battle to protect their rights. It ensures that culture will remain in the hands of greedy, out-of-touch gatekeepers for decades to come.

So, yeah, copyright and those who enforce it out of cultural or monetary greed could use a little fuckin? denigration.

S. T. Stone says:

Re: Re: Re:2 Re:

I can make up my own mind as to how to interpret facts and figures, and I can make out bullshit when I see it. I?ve disagreed with several Techdirt articles before, and I don?t take everything Mike and his crew say as The 100% Living Gospel of Copyright and IP.

When you look at how copyright has evolved not just within my lifetime, but since its inception via the Statute of Anne over three hundred years ago, it doesn?t become a challenge to see how copyright as it exists today stifles the creative world and harms the public more than it helps.

Copyright allows?
? ?a company to put an easily-defeatable mechanism for copy protection on a movie/game/MP3/whatever, then have you branded a criminal for breaking that mechanism in order to play that movie/game/et al on a device other than the one on which said company wants you to use.
? ?Prince?s record label to take down a six-second video (which features less than 1% of his entire discography), then forces the person who uploaded that video to put themselves in the line of fire of an expensive lawsuit if they choose to file a counter-claim on the takedown.
? ?the estate of Sir Arthur Conan Doyle to argue that the Sherlock Holmes character doesn?t fall into the United States public domain because all of Sir Doyle?s books don?t fall into the public domain, giving the estate full control over the Sherlock Holmes character within the United States.
? ?that same estate to use those still-in-copyright works and the questionable control over Sherlock Holmes to turn copyright into what amounts to a welfare system for Sir Doyle?s family (or whoever runs his estate).
? ?Prenda Law to think it can bamboozle federal courts in an attempt to extort random Internet users out of thousands of dollars in bogus copyright lawsuits.
? ?the average person to think they can file a DMCA takedown notification over speech they don?t like.
? ?the average corporation/multi-millionaire to know they can file a DMCA takedown notification over speech they don?t like.
? ?the Library of Congress to declare exceptions to the DMCA that it approved in one period as ?null and void? just three years later.
? ?the major media companies to stifle innovation vis-?-vis content delivery services/devices if those services/devices do more to make content delivery convenient for the consumer.

Does copyright have benefits? Absolutely. But those benefits have become weighed down by the inherent insanity of a copyright system where copyright still applies to works even after the creator of those works have died, corporations can have the length of copyright extended in order to prevent specific works and characters from falling into the public domain (coughmickeymousecough), and anyone who dares to question the system gets branded as a ?copyright anarchist?, ?pirate supporter?, or other labels that eliminate all the nuance from their arguments and opinions in favor of demonizing the person questioning the system.

?wait, I apologize, I got off track for a bit. Now, back to your post: what problem do you believe I have, again?

Chosen Reject (profile) says:

Re: Re: Re: Re:

We have a system in place to ensure that no one currently living will ever see anything created or published within their lifetimes go into the public domain.

You’re understating this. A lot of stuff created in my parents younger days won’t get into the public domain until after my kids have buried me. I can’t even begin to hope for stuff created while I’m alive.

Anonymous Coward says:

Re: Re: Re:

If you actually managed to catch more infringers or – you know – actually reduce copyright infringement, perhaps people would take it more seriously. But no, the only thing you’re good for is increasing the ways in which people might allegedly infringe on copyright, and your accuracy/arrest rate is thoroughly atrocious.

In most lines of work this is considered unacceptable performance no matter how you cut it, and such failure is regularly treated with derision and scorn. What makes you so special?

Anonymous Coward says:

Re: Re: Re: Re:

“If you actually managed to catch more infringers or – you know – actually reduce copyright infringement, perhaps people would take it more seriously. But no, the only thing you’re good for is increasing the ways in which people might allegedly infringe on copyright, and your accuracy/arrest rate is thoroughly atrocious.”

Ah, but that’s the magic. If they unscrupulously increase the number of ways people can infringe, and the amount of material that can be infringed on (by extending copyright), then not only do they have more people they can catch, but they get to claim infringement is an increasing problem and make it look like they’re telling the truth.

Aboslutely despicable by any honest person’s standards, but to them it’s common sense.

jimmy says:

Let Prince Give a Private Show If He Wants

Prince wanted to have a concert and not have videos of it put up on the internet. People were told “NO VIDEOS.”

Can someone not give a PRIVATE concert and tell people “NO VIDEOS” so that they can make a fool of themselves or just relax and have fun?

Let Prince give a private show and respect his wishes.

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